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2 Those who cannot remember the past are condemned to repeat it. George Santayana ( ), The Life of Reason, Volume 1 (1905). Cover photo and photo above by Justin Maconochie Photography

3 ta b L E o f c o n t E n t S E x E c u t i v E S u m m a r y Pa S t : The Birth of Jackpot Justice Why Legal Reform is Necessary Michigan s Healthcare System Still Sick: 1993 Tort Reform Another Look at Medical Malpractice Liability P r E S E n t : Gains Not Enough Michigan Is Falling Behind f u t u r E : Michigan Personal Injury Lawyers 00 Plan of Attack Michigan Must Continue to Move Forward More Reform is Needed.. 24 c o n c L u S i o n : Michigan s Legal Reform Challenge Don t Retreat to the Past E n d n o t E S o t h E r r E S o u r c E S About the Michigan Chamber Foundation The Michigan Chamber Foundation is a 501(c)(3) non-profit organization established to plan, promote and conduct non-partisan educational research and programs regarding issues facing Michigan including, but not limited to, taxation, government regulation, health care, hazardous waste, crime, tourism and recreation, welfare, government spending and transportation. This report is the latest in a series of public policy studies that can be found on the Michigan Chamber s web sit at Past, Present and future 1

4 E x e c u t i v e S u m m a r y In the 1980 s, Michigan, along with many other states, was facing a litigation crisis that threatened our economic well-being. Confronted with the specter of huge unpredictable jury verdicts resulting from frivolous lawsuits, small businesses closed, physicians refused to practice specialized medicine, and larger employers struggled with an uncertain and hostile legal environment that added to the cost of everything they produced, with consumers picking up the tab. Recognizing the extraordinary impact these costs were having on Michigan s citizens, the Michigan Legislature passed three major legal reform packages between 1986 and The 1986 package included general changes to tort law (liability, venue, and damages) and specific changes to the medical malpractice area (noneconomic damage caps, statute of limitation revisions, and expert witness requirements). The 1993 package focused on additional medical malpractice reforms in the areas of non-economic damage caps, expert testimony requirements, discovery requirements, and binding arbitration. The package focused on product liability reforms and actions seeking awards for personal injury, property damages, or wrongful death. The results of the legal reforms passed by the Michigan Legislature in the 1980 s and 1990 s have been real, measurable and far reaching: Lower medical malpractice insurance rates. Increased supply of physicians and medical specialists. Reduction in the practice of defensive medicine. Decrease in lawsuits against the State of Michigan. A growing life science corridor. The availability of commercial liability insurance for small businesses and job providers. Despite the benefits of legal reform for the state as a whole, there are those who wish to make Michigan the first state in the nation to legislatively roll back its legal reform measures some of which have been the law for more than 20 years, and all of which have provided real, tangible benefits to Michigan citizens. In light of the threat to roll back legal reform measures, it is appropriate even vital to review why the reforms were originally enacted, and how repealing them could pull us back to an unpredictable time in history when Michigan was indeed facing a dual economic and litigation crisis. The State of Michigan is again facing very difficult times, the toughest in a generation. A good legal climate will not in and of itself lift this economy off its knees. But to abandon it will surely put Michigan on its back. With the severe and unprecedented economic challenges that Michigan faces today, now is not the time to surrender our future by retreating to the past. In this era of term limits, this non-partisan public policy report is intended to inform lawmakers and other opinion leaders about the legislative history, current status and future direction of the debate over legal reform. Legal Reform in Michigan

5 past: t h E b i r t h o f j a c k P o t j u S t i c E w h y L E g a L r E f o r m i S n E c E S S a r y Picture this: In the 1980 s, the courts were clogged with a flood of litigation. The solution for every bad result or accident seemed to be a lawsuit patient against doctor, employee against employer, neighbor against neighbor. There were no longer accidents. More victims refused to accept responsibility for their own behavior. Instead, I ll sue you became the common response of anyone who thought he/she was wronged in any way. The litigation explosion was accompanied by exorbitant awards and settlements. The Michigan Lottery was joined by a new, more lucrative litigation lottery. Jackpot justice was born. The situation forced insurance premiums through the roof, becoming not only costly, but in some instances, impossible to obtain. Some doctors could no longer afford to treat patients, leaving large segments of our population without adequate medical care. Small businesses closed their doors. Jobs were lost. Finally, people had it. Enough was enough. It was under these circumstances that legal reform in Michigan was enacted. Photo by Justin Maconochie Photography Past, Present and future 3

6 ast: a c a L L t o a c t i o n f o r t h E m i c h i g a n L E g i S L at u r E In the summer of 1985, the Michigan House of Representatives and the Michigan Senate reacted to the crisis facing Michigan by forming special committees the House Special Committee on Liability Insurance and the Senate Select Committee on Civil Justice Reform to investigate the problems and suggest solutions. At the time of the committee formation, the Republicans held a narrow margin (20 18) in the Senate, while the Democrats controlled the House with a margin. The resolution calling for the formation of the Senate Select Committee on Civil Justice Reform said the explosion in the number of cases before our courts, many of which result in expensive damage awards, precludes any attempt at fair, swift, and efficient administration of justice. Additionally, this situation is detrimental to our state s business climate and has led to the unavailability of insurance or skyrocketing premiums in numerous instances and the loss of job opportunities. The committee was charged with the responsibility to address, at a minimum, the issues of structured settlements, statutes of limitation, prejudgment interest, joint and several liability, caps on non-economic damages, and the collateral source rule. 1 The House Special Committee on Liability Insurance was formed to study insurance industry practices, ascertain why liability insurance is unavailable and/or unaffordable for many Michigan citizens, and make public policy recommendations. 2 Understanding the urgency of the situation, these bipartisan committees immediately began their work. The seven-member Senate committee broke into three subcommittees: medical malpractice, governmental liability, and dram shop liability. In addition to committee meetings, the Senate committee held 14 public hearings throughout the state. The 16-member House committee met 10 times and heard testimony from 32 expert witnesses. In addition, the House committee heard testimony from 56 people during an all-day public hearing. t h E h o u S E a n d S E n at E c o m m i t t E E f i n d i n g S The two committees met for two solid months cooperating in a bipartisan fashion across party lines to do what was best for the citizens of Michigan. Both committees issued reports to the full legislature that fall. The Senate report concluded that [l]iability has reached epidemic proportions and presents an emergency situation to the Legislature. There is little time for delay in addressing this crisis. The House committee similarly urged immediate action. Samples of the findings of the House & Senate committees are noted below. Medical Malpractice: The medical malpractice liability crisis was accepted as a grave reality. 3 The committee cited a survey, conducted by Martin Block of Michigan State University, who found that in the five years preceding the study, 42 percent of Michigan s family physicians stopped delivering babies or reduced the number of deliveries; 57.6 percent of family physicians stopped or planned to decrease their involvement in surgery, and 57.3 percent had or planned to reduce their level of involvement in intensive care services. 4 The frequency of medical malpractice claims increased from 10 per 100 physicians in 1979 to 25 per 100 in This increase in claims led one medical malpractice insurance provider (Medical Protective Services Company) to threaten to leave the state unless something was done. 5 In fact, the availability of medical malpractice insurance coverage was becoming jeopardized. 6 Medical malpractice insurance costs doubled in the five years preceding the report, and tripled and quadrupled in some specialties. Three of the insurance companies writing policies in Michigan raised their rates by at least 49 percent in LEgaL reform in Michigan

7 T h e S e n at e S e l e c t C o m m i t t e e C i t e d T h e F o l lo w i n g Actual Cases: The practice of defensive medicine (i.e., scheduling superfluous tests just to be on the safe side ) was estimated to cost patients over $15 billion per year nationwide. 8 In the tri-county area of Wayne, Oakland & Macomb, the number of medical malpractice lawsuits increased from just over 200 in 1970 to nearly 2,200 in 1984 (over 1,100 percent) causing then-attorney General Frank Kelley to call it Michigan s second lottery. 9 Hired guns were brought in as expert witnesses even though they were not practicing experts in the appropriate field of medicine. 10 Government Liability: Dramatic increases in suits against governmental units were escalating the cost of providing government services with taxpayers paying the increased price. 11 Expenses of defending lawsuits against the state were becoming a major factor in the state budget. 12 The State of Michigan had a backlog of 1,400 suits against it representing claims of $2.4 billion (half of the general fund budget at that time). 13 The Michigan Department of Transportation s lawsuit payments were 57 percent of state s total payments to settle or pay off lawsuits. Thirty percent of the department s budget for road building and improvements were paid out in Fiscal Year Dram Shop Liability: Michigan was one of the few states with some form of Dram Shop Law that did not set ceilings on the amount of damages that could be paid. This resulted in Michigan having the highest insurance rates among the 23 states with Dram Shop liability laws. (Michigan s rates were seven times higher than second-ranked Minnesota, and 11 times higher than New York and New Jersey.) 14 A pedestrian walking along the side of the road on a rainy morning was hit by a car and awarded $500,000 in damages. The jury found the driver 90 percent negligent and the small village (pop. 1,558) 10 percent negligent for not having properly marked the side of the road. Because the driver only carried $20,000 worth of insurance, the village was forced to pay not only the $50,000 it was found responsible for, but the additional $430,000 as well. In order to avoid a potentially high jury award, Wayne County settled a case involving an auto accident in which a man was killed when his car hit a truck as the truck entered the county road. At the time of the accident, the man was speeding in a borrowed, uninsured car; he was drunk, with a blood alcohol level twice the legal level of intoxication. The county was found partially negligent because it could have posted Truck Crossing signs on the road. A plaintiff who was injured in the bathroom facilities at an elementary school contended the injury was caused by the removal of the lock from the entrance door of the commode, which allowed the door to swing inward and strike the occupant. A plaintiff who suffered an eye injury when struck by a tennis ball during a physical education class claimed the building was defective because the school district had failed to rig safety nets between tennis courts to prevent tennis balls from crossing from one court to another. Past, Present and FUTURE

8 ast: Rates for protection under the Dram Shop Act jumped from $1 to $7 per $100 in sales, while some owners were unable to secure coverage at any price. Nearly 65 percent of Michigan s bars and taverns were going without insurance protection because of the costs. 15 Under the Dram Shop Act, all liquor licensees who served an alleged intoxicated person are potentially liable for damages even if they only serve the person s first drink of the evening, and none others. 16 General Legal Reform: Payment of large lump sum awards for future damages (e.g., future lost wages) were placing undue burden on insurance company reserves, while permitting some plaintiffs to spend the money frivolously. 17 Plaintiffs were double-dipping, i.e., collecting medical benefits, no-fault benefits, etc., for certain injuries while receiving compensation as a result of tort claims for the same injuries. 18 Defendants responsible for as little as five percent of damages were being required to pay 100 percent of the costs under the doctrine of joint & several liability. 19 Time-consuming frivolous lawsuits were being filed, resulting in long delays for resolution of the claims. 20 t h E L E g i S L at u r E a c t S : the 1986 LEgaL reform Pack age The work of the bipartisan House Special Committee and the Senate Select Committee resulted in the passage of Public Act 178 in 1986 (House Bill No. 5154) which amended the Revised Judicature Act (1961 PA 236). This legislation included general changes to tort law and specific changes to medical malpractice law. Much of the medical malpractice law was modeled after the law in California that was passed some 10 years earlier. The Research Services Division of Michigan s Legislative Service Bureau summarized the provisions of the 1986 legislation as follows: 21 Provisions applying to all tort actions: Limit the liability of a party in an action (other than product liability) involving an at-fault plaintiff based on the party s percentage of fault. Limit the liability of governmental agencies (except hospitals) even in cases involving a plaintiff without fault. Submit all actions in which it is claimed the damages exceed $10,000 to pre-trial mediation. Require future damages over $250,000 awarded by verdict to be paid in periodic payments. Require a court to award costs and fees in the cases of a frivolous lawsuit or defense. Prohibit interest on future damages before they are awarded, and index the rate of interest on judgments to U.S. treasury notes. Change venue requirements, so that the venue must be where cause of action arose and where defendant resides or conducts business, with certain additional exceptions. Modify the collateral source rule, 22 and allow an award of economic damages to be reduced by the amount paid by a third party (a collateral source). Photo by David A. Trumpie 6 LEgaL reform in Michigan

9 T h e P e r s o n a l S i d e o f M e d i c a l Malpractice Liabi lit y Reform The following provisions apply only to medical malpractice actions: Place a cap of $225,000 on non-economic damages, with numerous exceptions such as death and intentional torts. Specify the qualifications of an expert witness in a case against a specialist, and prohibit experts from testifying on a contingency fee basis. Provide for the dismissal of a defendant upon affidavit of noninvolvement. Require each party to provide security for costs or file an affidavit of a medical opinion that the claim or defense was meritorious. Require every action to be mediated by a panel of three attorneys and two health care providers. Amend the act s statute of limitations provisions by revising the time when a claim would accrue. These reforms were bipartisan in nature, and reached only after a tremendous amount of public input, and much deliberation and debate by legislators. They resulted in benefits for all of Michigan, and made our state a model for other states facing similar crises. My father is a retired Obstetrician/Gynecologist. He attended Notre Dame for undergraduate school and Loyola Medical School. After his residency in Chicago, he was offered a terrific position with a hospital in Chicago which would have put him on the cutting edge of Obstetrics and Gynecology at a time (the late 1960s) when that field was on the edge of extraordinary change. My Dad turned down that job. He decided to return to his small hometown of Escanaba, Michigan During the late 60s, 70s and early 80s, my Dad was the only Ob/Gyn specialist within a 45-mile radius of Escanaba He delivered hundreds of babies each year and he passionately and humanely cared for women in and around Escanaba during some very traumatic moments in their lives. In the mid to late 80s, his malpractice premiums became so onerous (roughly $150,000 per year) that he was forced to consider retirement. The premium problem, along with the new, awful reality of having to look at each new patient or case as a potential lawsuit, started sucking the joy and satisfaction right out of the practice for him. In the early 90s, he was sued twice as a tangential defendant in two lawsuits where he had been called into difficult deliveries at the last minute because he was a specialist. In these two lawsuits, he was deposed by a plaintiff s attorney from lower Michigan who treated my father so uncivilly and disrespectfully that my Dad finally had the joy of his practice completely taken away. The premiums were outrageous, the trial lawyers were everywhere, and the demand was for perfect babies, or else. Alas, in 1995, my Dad retired for good at the age of 59. The medical practice he loved became a potential exposure he could not afford; and it became an adversarial environment he would never understand. Escanaba, Michigan, sadly lost one of the finest physicians it has ever, or will ever, have the honor of calling Doctor Bill. It was tragic and it was wholly preventable. Of course, we need to maintain avenues of justice for those who have been injured by the actions of others. But without some limitation, without the exercise of some prudence, without some appreciation for what we are doing to ourselves and our culture, we are in danger of suing ourselves into oblivion. **For the entire story, see Zandstra, Rev. Gerald, Senior Fellow Tort Reform and the End of Heroes, Acton Commentary (November 24, 2004) Acton Institute, Grand Rapids, Michigan. Past, Present and FUTURE

10 ast: m i c h i g a n S h E a Lt h c a r E S y S t E m S t i L L S i c k : t o r t r E f o r m a n o t h E r Lo o k at m E d i c a L m a L P r a c t i c E L i a b i L i t y Though the 1986 reforms certainly helped move Michigan in the right direction vis-à-vis medical malpractice liability, communities and their doctors were still suffering under the weight of litigation and the rising costs of providing medical care. Malpractice premiums were still skyrocketing, and frivolous claims continued to clog the courts. The political landscape was different this time in Lansing now the House was working under a shared-power arrangement, thus ensuring a bipartisan effort in gaining further needed reform in the medical malpractice liability field. Again, the Legislature worked to strike a careful balance between the rights of those who suffered real injuries and were victims of legitimate malpractice, and the need to maintain affordable and accessible healthcare in communities across the state. Some of the measures adopted had been discussed during the 1985 special committee deliberations, but were not included in the final 1986 legislation, while others were included because of information learned from the enactment of the earlier legislation. The result was the passage of Public Act 78 of 1993 (Senate Bill 270). This legislation did the following: Provide for a cap of $280,000 (or up to $500,000) on the total amount of non-economic damages recoverable by all plaintiffs in a medical malpractice action. Revise regulations regarding expert witnesses in medical malpractice actions in order to set higher standards for a person to qualify as an expert witness. Require a 182-day notice before a medical malpractice action could be commenced and require a response to that notice within 154 days. Require each party to give the other access to related medical records in the party s control. Require all medical malpractice plaintiffs to file an affidavit of merit and require all defendants to file an affidavit of meritorious defense. Permit the binding arbitration of medical malpractice actions involving damages of $75,000 or less and repeal current provisions on health care arbitration. Revise the statute of limitations for certain medical malpractice claims. Make other provisions pertaining to burden of proof, waiver of a plaintiff s physician patient privilege, and interest on judgments. 23 m i c h i g a n j o b S at r i S k t h E nee d f o r m o r E r Ef o r m In 1995, global and national economic competition made it apparent that additional work was required to get the legal system back into balance. In fact, in January 1995 Michigan s Chief Justice James Brickley, considered a voice of moderation, was quoted as saying that tort reform was essential. The 12-year veteran of the high court said, The credibility of the legal profession is at stake. He also decried a lottery mentality that encourages individuals to see injuries as opportunities to strike it rich. A lot of people think, when there s an accident or something like that, that it s time to get mine.that mentality gets into the jury s thinking as well. 24 This time, not only did the Legislature deal with general tort reform, it also focused on product liability. The bills passed were an effort to restore fairness and predictability in lawsuits for all of our citizens, workers and job providers alike. It is important to remember that this was a time when other states were trying to lure our manufacturers 8 LEgaL reform in Michigan

11 away to states with lots of sunshine and right-to-work laws. To combat this, Michigan had to offer sound policy and remedies to keep the jobs here and to remain competitive. In the Midwest, Illinois and Indiana had already passed such legislation, and it was clear that others would be following suit. Legislative efforts resulted in Public Act 249 of 1995 (Senate Bill 344) and amendments to the Revised Judicature Act (Public Act 236 of 1961) which did the following relative to product liability actions: Provide that a manufacturer or seller is not liable if a practical and technically feasible alternative production practice was not available. Create a rebuttable presumption that a manufacturer or seller is not liable if the aspect of production that allegedly caused the injury complied with federal or state standards. Allow the admission in evidence, for certain purposes, of subsequent changes in theory, knowledge, technique or procedure. Provide a manufacturer or seller is not liable if the harm was caused by alteration or misuse of the product that was not reasonably foreseeable; if the user was aware, and voluntarily exposed himself to an unreasonable risk; or if the alleged harm was caused by an inherent characteristic of the product. Specify that a manufacturer or seller is not liable for failure to warn if the product was provided for use by a sophisticated user. Specify that a defendant is not liable for failure to warn of risks that should have been obvious to a reasonably prudent product user or that are a matter of common knowledge. Provide that a manufacturer or seller is not liable for a drug that was approved by the Food and Drug Administration, 25 and so long as the manufacturer or seller did not withhold valuable information or interfere with the drug approval process. The second part of the legislative package dealt with tort actions seeking damages for personal injury, property damage, or wrongful death. Public Act 161 of 1995 (House Bill 4508) amended the Revised Judicature Act (Public Act 236 of 1961) to do the following: Eliminate joint liability and the reallocation of uncollectible amounts, except in medical malpractice actions. Require the trier of fact to consider the fault of nonparties, as well as parties, in determining the percentage of total fault in an action involving fault of more than one person. Provide that non-economic damages may not be awarded to a party whose percentage of fault exceeds the aggregate fault of the other persons, and that the party s economic damages must be reduced. Revise provisions governing venue. 26 Past, Present and FUTURE 9

12 ast: After healthy discussions and debate, these legal reform initiatives became law. Jobs were saved. Balance restored. Predictability assured. With the passage of this legislation, Michigan again brought itself into the mainstream of legal reform, joining many other states that had already passed similar reforms. b E n E f i t S o f L E g a L r E f o r m In Michigan, as across the country, the benefits of legal reform are readily apparent. From solving the medical malpractice liability crisis to capping noneconomic damages and reforming product liability laws, all have helped Michigan s job providers, workers and consumers. Lower Medical Malpractice Insurance Rates: Though national medical malpractice rates continue to climb, Michigan s rates have stabilized. This is directly attributable to legal reform, and has resulted in doctors, general practitioners and specialists alike, to continue providing medical care to patients across the state. Increased Supply of Physicians & Specialists: Caps on non-economic damages in medical liability lawsuits have also been beneficial for healthcare. A recent study found that states with limited noneconomic damages in medical malpractice liability cases have more physicians than states without limits. This was particularly apparent in rural counties where states with limits had 3.2 percent more physicians per capita, and 5.4 percent more obstetrician/gynecologists and 5.5 percent more surgical specialists per capita than rural counties in states without caps. 27 Similarly, a study in the Journal of American Medical Association found that the physician supply increased by 3.3 percent after the adoption of direct medical malpractice which limit the sizes of awards. 28 Reduction in Practice of Defensive Medicine : Direct medical malpractice liability reforms limiting awards also reduces defensive medicine procedures, thus resulting in lower overall medical costs. 29 Decrease in Lawsuits Against the State: Michigan has also benefited from a decrease in payouts from lawsuits against the state itself. As the 1985 Senate report said, Few tears are shed about the prospect of government being sued for damages, but the dramatic increases [were] escalating the costs of providing government services, and the taxpayer [paid] the inevitable price. This is not to say that one cannot bring a cause of action against the State; they can, and do. However, since the bills enactment, payouts for settlements and verdicts on questionable cases have decreased substantially. A Growing Life Science Corridor: The product liability package of focused on providing Michigan a competitive advantage in ensuring good paying jobs for our citizens. While trailing in other economic factors vital to job creation, the FDA defense gave Michigan a tool to compete, specifically toward the goal of developing our biotech industry in the life science corridor. The results were spectacular. Michigan led the nation in percentage growth of new biotech companies from LEgaL reform in Michigan

13 30 H I G H W A Y N E G L I G E N C E P A Y M E N T S F Y t h r o u g h F Y Millions Fiscal Year Source: Senate Fiscal Agency, Lansing, Michigan, February 006, Status of Lawsuits Involving the State of Michigan, FY Update, p.8. Past, Present and future 11

14 ast: The benefits of tort reform are real, measurable, and far reaching. Commercial liability insurance is widely available for small businesses. Many frivolous lawsuits no longer make it to trial, thus freeing up the courts to handle those with legitimate claims. Health care, while still costly, is more affordable and accessible. Reforms have protected access to the courts for those who have truly suffered an injury, but also offered some degree of predictability to the system. Most of all, reforms have helped make our economy and state stronger. Photo by Justin Maconochie Photography 1 LEgaL reform in Michigan

15 present: g a i n S n o t E n o u g h m i c h i g a n i S fa L L i n g b E h i n d Though initially a leader in legal reform, today the majority of states have caught up by also enacting reform legislation, leaving Michigan ranking 22nd in the best-to-worst legal systems in America. 31 Thirty-seven state legislatures have enacted reforms modifying joint-and-several liability, while 23 states have addressed the collateral source rule issue. Limits on non-economic damages and punitive damages are also in place in the majority of states as are medical malpractice liability reforms and restrictions on attorney s fees. What once was a competitive advantage is now barely allowing us to keep up with other states. Photo by David A. Trumpie Past, Present and future 13

16 resent: P E r S o n a L i n j u r y L aw y E r S o P P o S i t i o n t o L E g a L r E f o r m t h r E at E n S t o t u r n b a c k t h E c Lo c k Given the benefits legal reform brings to Michigan families, health care providers and job providers, one would wonder who would be against it in these tough economic times. The answer is simple: personal injury lawyers. Why? Because despite reforms enacted in Michigan and across the country, lawsuit abuse continues to thrive, and its growth is vital to their economic well-being. In other words, it hits them in their wallet. 32 Consider the following statistics based on direct tort costs for judgments, settlements, attorney fees, and administrative expenses: Only 46 percent of settlement dollars ever reach the actual victims (22 percent for economic loss and 24 percent for non-economic loss), while 14 percent goes to defense costs, 21 percent for administration, and 19 percent for the plaintiff s attorney fees. 33 The U.S. tort system cost $261 billion in 2005, which translates into a litigation tax of $880 per person, or over $3,500 per year for a family of four. 34 Since 1950, growth in tort costs has exceeded growth in GDP by an average of two to three percentage points. From 2001 to 2005, tort costs grew at 7.9 percent per year, while GDP grew at only 4.9 percent. 35 (Note: These figures do not include the tobacco settlements.) Awards for economic loss 22% 21% Administration Claimants attorney fees 19% 24% 14% Awards for noneconomic loss Defense costs Source: Tillinghast-Towers Perrin, U.S. Tort Costs: 00 Update Trends and Finds on the Costs of the U.S. Tort System. 14 LEgaL reform in Michigan

17 These numbers become even more startling when you go beyond the direct costs of the tort industry, and include indirect costs such as the effect on health care expenditures, innovation, stockholder wealth, etc. The inclusion of all such costs and foregone benefits resulted in a U.S. tort system cost of $865 billion in This translates into an even larger litigation tax of over $2,456 per person, or over $9,827 per year for a family of four. To put this number in perspective: The federal government currently spends about $65 billion on schools and education less than one-tenth of the cost of lawsuits. 37 In 2005, the total amount of charitable giving by Americans totaled $260 billion less than onethird the cost of lawsuits. 38 The budget for the Pentagon and conflicts in Iraq and Afghanistan totaled about $500 billion in 2006 less than two-thirds the cost of lawsuits in America. 39 And the saddest part is that when you include all costs and foregone benefits, less than 15 percent of the $865 billion actually goes to compensate injured people. Thus, despite the rhetoric from the trial bar, lawsuits are still filed and millions of dollars are still paid out in settlements and verdicts. The difference is that now, here in Michigan, and in many states across the country, a person must have an actual injury, and sue the person who caused the injury. Because of the amount of money at stake, the Center for Legal Policy at the Manhattan Institute continued on next page Photo by David A. Trumpie Past, Present and FUTURE 15

18 resent: has called personal injury lawyers Trial Lawyers, Inc., focusing on the fact that this is a complex, multi-billion dollar industry, not a few, local, wellmeaning lawyers looking out for their clients. Taken as a whole, they function much like any corporation: They organize along different lines of business (asbestos, pharmaceuticals, insurance, lead paint and mold, even fast food). They are increasingly sophisticated in targeting their customer base through the Internet, 40 as well as newspaper, radio, television, and the yellow pages. They have paid professionals dealing with their public/government relations and lobbying efforts. 41 Thus, while the trial bar condemns the profits of corporations and job providers, they are understandably protecting the exorbitant profits of their own industry. And that s why they virulently oppose legal reform, and work tirelessly to oppose even modest reform measures and to repeal those already in place. Personal injury lawyers are a very smart and politically savvy group. For example, understanding that in public surveys, people react badly to the term personal injury lawyers and trial lawyers, they went so far as to change the name of their national organization from the Association of Trial Lawyers of America to the American Association of Justice. Rumor has it that the Michigan Trial Lawyers Association may follow suit. Personal injury lawyers pour hundreds of thousands of dollars into campaigns through Political Action Committees and individual checks. In fact, in the 2006 election cycle, the Michigan Trial Lawyers Association/Justice PAC raised $1,062,264 for state candidates in Michigan. 42 This does not include the massive contributions made by personal injury lawyers to candidates. The personal injury lawyers work to get like-minded people elected to legislatures and judicial posts. They maneuver to control judicial nominating committees, state bar associations and law school faculties. They have vertically integrated the American legal system. Because of their considerable influence in Washington, D.C., legal reform at the federal level has been effectively dead for years.except for modest class action reforms passed in Now they are taking their offensive into the states, with mixed results. In the states, they tend to be more successful in the courts, especially in courts with judges sympathetic to personal injury lawyers. In nearby Illinois, you find courts that have consistently ruled with personal injury lawyers. 43 On the legislative battlefield, they focus on getting legislation passed beneficial to their cause and block legislation that would affect their pocketbooks all in the name of the little guy. However, despite steady opposition from the trial bar, elected officials in state after state have wisely rejected their spurious claims and passed legal reform with bipartisan support in the legislatures and governors offices. 16 LEgaL reform in Michigan

19 Richard Dickie Scruggs, Mississippi trial lawyer whose firm will collect $1.4 billion in legal fees from the tobacco settlements and has now shifted his focus to lawsuits against HMO s and asbestos claims, perhaps said it best: What I call the magic jurisdiction, [is] where the judiciary is elected with verdict money. The personal injury lawyers have established relationships with the judges that are elected; they re State Court judges; they re popul[ists]. They ve got large populations of voters who are in on the deal, they re getting their [piece] in many cases. And so, it s a political force in their jurisdiction, and it s almost impossible to get a fair trial if you re a defendant in some of these places. The plaintiff lawyer walks in there and writes a number on the blackboard, and the first juror meets the last one coming out the door with that amount of money.these cases are not won in the courtroom. They re won on the backroads long before the cases goes to trial. Any lawyer fresh out of law school can walk in there and win the case, so it doesn t matter what the evidence or law is. Photo by Justin Maconochie Photography Past, Present and future 1

20 ...in the 2006 election cycle, the Michigan Trial Lawyers/Justice PAC raised $1,062,264 for state candidates in Michigan -- Michigan Campaign Finance Network Top 150 PACS, 2006 Election Cycle Photo by Justin Maconochie Photography. 18 LEgaL reform in Michigan

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